Is Dept. of Ecology being certain, predictable, and fair?

Washington’s State Environmental Protection Act (SEPA) is designed to protect our natural environment, and for over three decades projects of all types have been reviewed under that law in a process that is supposed to be fair, consistent, and free of politics.

Now the state Department of Ecology is changing that process, and the rules that have governed environmental review for years, because the agency seemingly doesn’t like the idea of shipping one product (coal) out of Washington State. The decision to subject a bulk commodity terminal project in Whatcom County to a more expansive “global review,” one that will examine impacts not just within our state’s borders but across the globe, has many groups concerned – even ones which do not have a stake in the coal debate.

A new coalition made up of business, agriculture, labor unions, and port concerns launched yesterday, calling itself Keep Washington Competitive. Coalition members are worried that Ecology will begin using SEPA as a cudgel against products it doesn’t like.

Frankly, it’s worrisome enough when government uses its regulatory power in arbitrary, inconsistent ways. In the most trade-dependent state in the nation, with a still-recovering economy, the results could be disastrous.

Gary Chandler of the Association of Washington Business, a member of the coalition, said that many are watching what Ecology does next. “SEPA was designed to keep politics out of the environmental review process and to give clear mitigation requirements for development projects,” he said, but under the new rules, investors could conclude that Ecology’s use of SEPA is “not apolitical, it’s not practical, and it may not be worth the hassle making trade investments here.”

The state Farm Bureau, which does not have a specific interest in the coal debate, is also concerned about Ecology’s approach. With much of Washington’s agricultural production exported internationally, the interest of farmers, said Tom Davis, is in a “fair, predictable, and reasonable environmental review process” for new export facilities.

“Washington has never taken a commodity-specific approach to evaluating trade activity or transportation proposals,” said Davis, the Farm Bureau’s Director of Government Relations. “In the past, new proposals were evaluated on the merits of a given project, and the mitigation of impacts was established within reason of the specific project under review. But by expanding to a global review, the Department of Ecology will now have the power to pick and choose which commodities or goods it allows to move through our ports.”

That “power to pick and choose” is precisely why so many groups are worried about how Governor Jay Inslee’s Ecology Department is using the SEPA process in essentially ideological ways.

At a recent State Senate committee hearing, Ecology Director Maia Bellon pushed back against the claim that her department is picking and choosing which projects are subject to a more “global review” as part of its environmental impact statement (EIS), saying it is done on a “case-by-case” basis. She also said Ecology is treating the Gateway project in Whatcom County differently because the “end use” of coal is clear, even when it isn’t being used locally.

That raises a few obvious questions. For starters, what is the distinction by “picking and choosing” and deciding on a “case-by-case” basis? The end result is a department and an administration deciding which rules will be used to evaluate a project, which is hardly “fair and predictable” for those seeking permits for new projects.

Also, why is “end use” a fair basis in the environmental reviews for bulk commodity terminal projects but not, say, for Boeing’s proposals for building the 777X in Everett? Do we want state government deciding whether or not it approves of the “end use” of Boeing planes flying around the globe, or Renton-built Kenworths hauling freight on our highways? And if that standard isn’t being applied consistently, how will state government decide when it will and will not be applied – and how can investors predict which projects might be held up by the state because of political reasons beyond their control?

Mike Elliott of the Brotherhood of Locomotive Engineers and Trainmen, one of several labor representatives at the Keep Washington Competitive press conference yesterday, said in his remarks, “The expanded scope studies that seek to include possible events beyond our state’s borders should not be considered, and [have] unnecessarily delayed what should be a fair, balanced process. Political ideologies should have no place in the EIS process.”

But it’s clear to many: Politics rules this process now. And that’s not smarter government – which is why we should be thankful the Keep Washington Competitive coalition is taking up this fight.

Rob served two terms as Washington’s Attorney General, from 2005 to 2013. He successfully argued three cases before the U.S. Supreme Court and negotiated three of the largest consumer financial protection settlements in national history, all involving mortgage lending and servicing. He is a recognized leader in the development of consumer protections on the internet, in data protection and privacy regulation.